in Firearms Transportation –Acknowledges the Most Common Deviations & Provides General Guidance

AG Also Promulgates Official Regulations for Incremental Improvement

in “Justifiable Need” for Right to Carry

April 8, 2016:

The New Jersey Attorney General has followed through on the recommendations of Governor Chris Christie’s 2015 firearms study commission formed pursuant to Executive Order 180, taking the following actions:

1.Issued an Attorney General Directive regarding the outrageous delays and illegal conditions imposed by bureaucrats in the issuance of firearms permits, directing every permitting authority in New Jersey to follow state law mandates, and requiring them to regularly track and report their compliance to the State, and to respond to update inquiries by individual applicants. The Directive also calls for further study of how the permitting process can be streamlined in the future. The Directive will greatly facilitate the mission of ANJRPC’s Permitting StrikeForce to end permitting abuse throughout the state.

2.Issued an Attorney General Directive reducing uncertainty in the meaning of “reasonably necessary deviations” in the transportation of firearms by law-abiding citizens, providing general guidance on the subject as well as specific examples of the most common deviations deemed “reasonably necessary,” such as pickup and discharge of passengers, purchasing food, beverages, fuel, medicine, and other necessary supplies, using a restroom, and contending with an emergency situation.

3.Recently promulgated state police regulations to effect the incremental improvement in the “justifiable need” standard needed to qualify for a carry permit that was recommended by the Governor’s commission.

“We welcome these historic executive actions to make progress on basic issues that have plagued New Jersey’s one million law-abiding gun owners for decades,” said ANJRPC Executive Director Scott Bach. “Honest citizens who choose to exercise their Second Amendment rights should not have to wait months or years for permits, and should not have to live in fear of imprisonment for stopping while travelling to the range.”

“As for New Jersey’s blatantly unconstitutional interference with self-defense through an impossible-to-satisfy carry permit standard,” Bach continued, “gun owners will eventually overturn that abomination, but in the meanwhile we welcome the modest incremental improvement represented by the new rules being promulgated.”

Based on the separation of powers doctrine, executive actions are limited by the New Jersey Constitution, and cannot change laws passed by the legislature or ruled on by the courts. But they can clarify unclear areas of the law not addressed by the courts or the legislature, and take actions limited to the executive branch of government that do not exceed constitutional authority or infringe on the other branches of government. Executive actions that exceed their authority and infringe on the other branches of government are unconstitutional and cannot survive a challenge.

While a detailed review of these executive actions is currently under way, following is our preliminary analysis:

ENDING PERMITTING ABUSES

Garden State gun owners have suffered longstanding, widespread abuses in the issuance of firearms permits, including outrageous delays beyond the legally mandated 30-day deadline, and the imposition of unlawful conditions on the issuance of permits, like requiring employer consent, spousal notification, and dozens of other unauthorized requirements.

ANJRPC’s Permitting StrikeForce was formed in 2014 to systematically address these issues town-by-town among New Jersey’s 565 municipalities and police barracks that issue permits. Significant progress has been made, and we are currently engaged in discussions with approximately 200 towns, but the new Attorney General Directive on permitting will greatly facilitate the process.

The Attorney General directive requires permitting authorities to follow the mandates of state law, to regularly track and report their compliance to the State, and to respond to update inquiries by individual applicants. The Directive also calls for further study of how the permitting process can be streamlined in the future.

“We expect the new Attorney General Directive on permitting to turbocharge ANJRPC’s Permitting StrikeForce initiative,” said attorney Daniel Schmutter, Esq., leader of the project. “There is no excuse for any failure to comply with the clear requirements of state law, and the new AG Directive enables us to become much more aggressive with non-compliant towns.”

CLARIFYING “REASONABLE DEVIATIONS”

IN FIREARMS TRANSPORTATION

State statute generally requires that transportation of certain firearms be “direct” between authorized points in order for possession to be legal, except for “reasonably necessary deviations” – a term not defined by state law.

For decades, honest gun owners have faced the threat of prosecution for unlawful handgun possession (a crime carrying up to ten years in prison) if a stop between authorized points was not deemed a “reasonably necessary deviation” in transportation. Many law-abiding citizens have been turned into criminals by this absurd law, and there is a patchwork of conflicting interpretations from town to town regarding what is considered “reasonable.”

The new Attorney General directive provides statewide guidance on the issue, and identifies specific examples of the most common deviations that should be deemed “reasonably necessary,” including pickup and discharge of passengers, purchasing food, beverages, fuel, medicine, and other needed supplies, using a restroom, and contending with an emergency situation. The general guidelines specify that the more limited in duration and distance that transportation deviations are, the more likely they are to be found reasonable.

Again, the executive branch does not have the power to ignore or rewrite state law on transportation of firearms (it can only interpret existing law, in a manner consistent with statutory language and court decisions). While New Jersey still has a very long way to go in recognizing the right to transport firearms under the Second Amendment, the new directive adds more clarity and certainty to an area that has placed gun owners in legal jeopardy for decades, and represents an incremental improvement.

AN INCREMENTAL IMPROVEMENT IN “JUSTIFIABLE NEED”

FOR HANDGUN CARRY PERMITS

The right to defend yourself with a firearm outside the home, otherwise known as right to carry, has long been disparaged by the Garden State, and it is nearly impossible for gun owners to qualify for a carry permit due to the state’s absurdly restrictive and impossible-to-meet “justifiable need” standard, which currently requires proof of actual threats or prior attacks, among other things. ANJRPC challenged that standard in a significant lawsuit several years ago, but unfortunately the U.S. Supreme Court declined to hear the case. With the recent passing of conservative pro-gun Justice Antonin Scalia, the outcome of other pending carry law challenges heading toward the U.S. Supreme from other states is uncertain.

As noted above, executive powers are limited by the New Jersey Constitution, and the executive branch cannot simply rewrite laws passed by the legislature or ruled on by the courts, based on the separation of powers doctrine. The executive branch is constrained by state law and court opinions interpreting justifiable need and does not have the authority to simply ignore the other branches of government and rewrite the standard, much to gun owners’ disappointment. However, incremental improvement of the standard is possible and enforceable if it does not conflict with the existing statute interpretation.

The recent State Police rules promulgation implementing the recommendation of the Governor’s commission on justifiable need is the first step in a technical, lengthy process. Following the promulgation, there is a period for public comment, an opportunity for amendment of the proposed rules, and eventual finalization of the rule.

According to gun rights guru and ANJRPC legal affairs chair Evan Nappen, Esq., "The Governor’s recommendation would incrementally improve justifiable need by allowing the demonstration of urgent necessity to be met by 'serious threats', as opposed to just 'specific threats and previous attacks.' It further adds a standard of reasonableness to the requirement that the threat cannot be avoided by means other than carrying a handgun. It opens the door to many qualified individuals getting a carry permit who otherwise would be denied." For an in-depth discussion of justifiable need and how the Governor’s recommendation would make an incremental improvement, listen to this extensive interview with ANJRPC attorney Daniel Schmutter, Esq.

ANJRPC President and national pistol champion Kathy Chatterton commented, “New Jersey’s current unacceptable ‘justifiable need’ standard has an especially harsh impact on women. Women frequently become the targets of stalkers and vengeful ex-husbands or boyfriends. New Jersey must join the 43 other states that recognize concealed carry as important to a woman’s right to protect herself when facing this kind of danger. Self-protection outside the home is everyone’s right – including women!”

While ANJRPC is committed to fully restoring the right to carry and ending the Garden State’s medieval mistreatment of gun owners, even a modest incremental improvement in a standard destined to be overturned is welcome in the meanwhile.